State v. Penny J., 14944

Citation890 P.2d 389,1994 NMCA 143,119 N.M. 328
Decision Date02 November 1994
Docket NumberNo. 14944,14944
Parties, 8 A.D.D. 1369, 6 NDLR P 202 State of New Mexico, ex rel. Human Services Department, in the Matter of the Termination of the Parental Rights of Penny J., Respondent, with respect to Jess B. and Kenneth B., Children. STATE of New Mexico, Plaintiff-Appellee, v. PENNY J., Respondent-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

BLACK, Judge.

Appellant Penny J. is a parent who has been diagnosed as having borderline personality disorder and borderline intellectual function resulting from cognitive difficulties, neurological soft signs, and seizure activity. The New Mexico Children, Youth and Families Department ("the Department") worked with Appellant over a five-year period as a result of repeated reports that Appellant was abusing and neglecting her children. In 1992, the Department moved to terminate Appellant's parental rights. The district court, children's court division, determined that the Department had expended reasonable efforts to assist Appellant in properly caring for her children, but that there was no reason to believe Appellant would be able to parent the children in a safe manner in the foreseeable future. Based on these findings, the district court ordered termination of Appellant's parental rights. Appellant argues that the Department improperly evaluated her disabilities and afforded her inappropriate treatment in violation of federal and state law. We disagree, and affirm.

I. STANDARD OF REVIEW

On appeal from termination of parental rights, we are to view the evidence in the light most favorable to support the findings of the trial court. Reuben & Elizabeth O. v. Department of Human Servs., 104 N.M. 644, 647, 725 P.2d 844, 847 (Ct.App.), cert. denied (Apr. 24, 1986). The standard of review is whether the grounds relied upon by the district court in terminating parental rights have been proven by clear and convincing evidence. Id. at 647-48, 725 P.2d at 847-48.

II. FACTS

The Department first became involved with Appellant and father, Robert B.,1 and their children, Danny B. and Jess B., in 1986, due to the chronic neglect of their children.2 At that time, the children were taken into custody by the Department. Before the children were returned home eighteen months later, the Department provided services to the parents to assist them in addressing the conditions leading to the abuse and neglect. These services included a support group, in-home homemaker services to assist them in learning parenting and basic housekeeping skills, individual counseling and a literacy program for Appellant, and a parent-child participation program.

In 1987, the Department received reports that Jess B. was being physically abused. Custody of Appellant's children was again returned to the Department. Appellant agreed to plead no contest to a substantiated charge of abuse and neglect with respect to her children. Her two children (Kenneth B. was in utero when this action occurred) were ordered to remain in the physical and legal custody of the Department.

In February 1988, the Department assessed Appellant's situation to determine which services she should receive before being permitted to have the children returned to her care. Charlene McIver, a Ph.D. psychologist, diagnosed Appellant as having a borderline personality disorder and indicated that Appellant was not capable of "parenting these children at this time." Accordingly, the Department developed a treatment plan that included day treatment services at the Recreation, Health, and Occupation Center's literacy program and a preschool program for Appellant, and in-home nursing care for newborn Kenneth B. The purpose of these services was to allow the parent to utilize the two years of training previously provided to develop appropriate parenting skills. The treatment plan went into effect after the next mandatory judicial review in May 1988. On December 8, 1988, the judicial review established a new treatment plan extending Appellant's participation in the literacy program, providing individual therapy for Appellant, requiring participation by both parents in the "Hands On" parenting program, and continuing day care and other in-home services for Kenneth B.

Termination of visitation with Jess B. was incorporated into the July 1989 treatment plan based on Dr. Cardillo's findings regarding "Penny's poor stress coping abilities" and her denial of "personal responsibility or awareness of her participation in Jess's removal from the home environment." On November 5, 1989, Kenneth B. was placed in the custody of the Department due to substantiated reports of physical abuse and medical neglect by Appellant. An adjudicatory hearing occurred with respect to Kenneth B. on February 9, 1990, and Appellant and Robert B. entered another no contest plea concerning the allegations of neglect. Meanwhile, the Department's plan of action indicated that it intended to terminate Appellant's parental rights with respect to Daniel B., Jess B., and Susan B.

The January 1990 judicial review incorporated a report that Appellant had not been participating in individual therapy since September 1989, and that the Department was exploring alternative therapy. However, the treatment plan proposed and approved at that time required her to participate in individual therapy.

At the judicial reviews occurring between June 1990 and February 1991, it was reported that Appellant: (1) had voluntarily left New Mexico in February 1990, and had resided at the Rescue Mission in El Paso, Texas for approximately four months; (2) did not visit with Kenneth B. on fourteen of twenty-five scheduled visitations; and (3) continued to be "unwilling" to participate with the treatment plan's objectives and was not able to secure either employment or stable housing.

The May 1991 judicial review indicated that Appellant was evaluated by Dr. Geoffrey Sutton. Dr. Sutton diagnosed her as having a "borderline intellectual function" and a "borderline range of intelligence." By October 1991, the Department had engaged the services of Toni Fine, a master's level therapist, who focused on increasing Appellant's independent living and life management skills. Additionally, a social worker, George Oller, provided weekly one-on-one parenting training. However, the therapeutic preschool program was discontinued because Appellant had made "minimal progress" and did not show the therapist an "ability to parent at that time[.]"

The Department finally filed a termination action on May 29, 1992. Toni Fine testified that Appellant was not "on par" with others in the parent community because of "her judgment abilities, her possible processing abilities, [and] the way there is no anticipation of possible consequences [of actions.]" Because parenting involves judgment, Fine reasoned that Appellant would not be able to take the "[parenting] reins alone" and would not have the ability to parent "today." Appellant's expert, George Oller, echoed Fine's testimony on that issue. Oller acknowledged that he saw "growth" in Appellant's parenting skills, but could not make "some broad sweeping statement that ... within six months she would be able to parent [full-time]."

III. FEDERAL LAW
A. The Americans with Disabilities Act

Appellant argues that Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Sec. 12132 (Supp. II 1990), requires the Department to provide services "from which she could gain the same benefits as other respondents without identified disabilities." We disagree.

Although enacted in 1990, the ADA was phased in gradually, meaning that different provisions became effective at different dates. Counsel for Appellant and amicus rely upon the nondiscrimination provision in 42 U.S.C. Sec. 12132, which provides, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." Id. This provision did not, however, take effect until January 1992. See Bonnie P. Tucker, The Americans with Disabilities Act of 1990: An Overview, 22 N.M.L.Rev. 13, 99 (1992). Furthermore, Appellant concedes that the Department, through Toni Fine and Gregory Oller, provided her with appropriate individual training and counseling in 1991. Thus, Appellant's premise that she was discriminated against in violation of this provision of the ADA must fail.3

B. The Rehabilitation Act

Appellant also argues that Section 504 of the Rehabilitation Act of 1973 ("the Act"), 29 U.S.C. Sec. 794 (1988 & Supp. IV 1992), preempts state law and required the Department to provide services to Appellant "that were as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others." As the title of the Act indicates, however, it was not designed primarily to apply to parental termination issues. In re Robert S.T., 86 A.D.2d 748, 447 N.Y.S.2d 776, 777 (1982) (provisions inapplicable to termination of parental rights). One division of the New York family court, in a case relied upon by Appellant, originally found that the Act applied and preempted the termination of handicapped persons' parental rights. In re Roth, 109 Misc.2d 699, 440 N.Y.S.2d 806, 808 (1980). That position was almost immediately rejected by other divisions of the same court. As one judge said in In...

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